NEXUS pass holders sometimes run into difficulties when they
return to Canada after a trip abroad. The NEXUS pass holder may
discover that their "disagreement" with the Canada Border
Services Agency ("CBSA") upon re-entering Canada may
result in the immediate confiscation of their NEXUS pass or they
may receive a letter in the mail (or by email if they have a GOES
account) after the fact informing the pass holder that their NEXUS
privileges have been cancelled. An informal and regulatory appeal
process has been established — but it is not quick. As a
result, until the appeal is resolved, the business persons and
frequent travelers must use the snail lines (instead of the fast
NEXUS kiosks) while any appeal is under review.
If you are Canadian and your NEXUS pass is confiscated or
cancelled by the appeal process is established in the
Presentation of Persons (2003) Regulations. The appeal
process requires a letter to be written and mailed within 30 days
of the date of the confiscation or letter informing of the
cancellation of NEXUS privileges. The letter must be mailed to the
If the confiscation relates to a violation of the NEXUS Program
(e.g., using the NEXUS lane when non-NEXUS persons are in the
vehicle), then it is only necessary to file an appeal to the Level
1 Redress Committee of the NEXUS Program.
However, if the confiscation relates to a customs
infraction/contravention, the person must overturn the customs
infraction in order to be successful in the NEXUS appeal (for
example, the under-declaration of goods acquired outside Canada).
There is a separate process, to appeal valuation, tariff
classification and origin issues. The appeal on valuation,
classification and/or origin issues (called a "request for
redetermination") is filed with the CBSA, Recourse
Directorate. This process takes time.
It is important to file 2 appeals. One appeal is filed with the
NEXUS program and is in respect of the cancellation of the NEXUS
privileges. The second appeal is the appeal on the merits of the
customs infraction. The NEXUS program appeal will be reviewed at
the NEXUS Program and then sent to the Recourse Directorate if the
explanation has any merit whatsoever. However, if you have filed
both appeals, the appeal for reinstatement of NEXUS privileges will
be deferred until after the appeal on the merits. The CBSA may or
may not understand that the business traveller is more interested
in a quick reinstatement of NEXUS privileges and less concerned
about the refund of duties and GST/HST.
The appeal must set out the facts, details concerning the
dispute and the reasons for the appeal. The appeal should include
any and all relevant documents concerning the
"disagreement". After the appeals are filed, the CBSA,
Recourse Directorate will send a copy of the CBSA Officer's
notes on the day in question relating to the
"disagreement". The CBSA, Recourse Directorate will give
you 30 days to file additional information after receiving the
notes. If your letter of appeal is very divergent from the CBSA
Officer's version of the events, you will have a problem in
explaining those differences.
It is not a simple and quick process to appeal a confiscation of
a NEXUS pass. The process is not written anywhere and may take over
a year. If you require assistance from a lawyer because the NEXUS
privileges are important to you, please contact Cyndee Todgham
Cherniak at 416-307-4168.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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